David Harmon: Good evening, I’m David Harmon.
Mariya Gonor: And I’m Mariya Gonor.
David Harmon: And we are the Employment Strategists. Welcome to our special Halloween episode entitled Spooky HR Issues. We are going to discuss how best to avoid HR horrors for both employers and employees.
Mariya Gonor: Instead of our typical employment-related acronyms, we have a ton of special Halloween puns for you today. So, if this is your particular type of humor, I’m sure you’ll enjoy this episode. We will cover a number of issues that, as David said, affect employers and employees, including Halloween parties, office decorations, recommendations about the costumes, do’s and the dont’s, and the importance of allowing employees to opt out based on religious accommodations.
David Harmon: So, let’s talk not only about the four areas that you just mentioned, but also we’ll get into, uh, cases, some case law that, uh, show how improper conduct on, Either employers or employees, behalfs, have resulted in court cases. And some of these, findings and holdings have been rather interesting.
Mariya Gonor: Oh, yeah. The frightening case law that demonstrates what a nightmare non-compliance with HR issues could be on Halloween. Yes.
David Harmon: So, let’s first talk about the festivities, Mariya.
Mariya Gonor: Yes. Very frequently, employers like to encourage participation of employees and make these festivities mandatory. It is important to remember that the basis of this holiday are actually in some religions and some religions do not permit participation in All Hallows Eve. For that reason, employers should remember to allow their employees to opt-out to avoid liability.
David Harmon: That’s very critical because otherwise, you can get yourself caught in a religious discrimination claim.
Mariya Gonor: Yes.
David Harmon: As a result of not accommodating the religious belief.
Mariya Gonor: The choice to not to participate.
David Harmon: But the individual has to make the employer aware.
Mariya Gonor: Yes.
David Harmon: That there is that religious observance. Or that that person is a member of a particular faith.
Mariya Gonor: Yeah, a very recently failure by PNC Bank to allow an employee to opt out resulted in a finding of potential liability. This is a 20, 2012, I’m sorry, case out of the Eastern District of Pennsylvania, where a Jehovah’s Witness explained that participation in Halloween activities would be against her religion. But the employer insisted that the party was mandatory. After that, she sustained some, which she felt was adverse employment action and brought a claim and the court allowed that claim to proceed.
David Harmon: So, there was another case several years ago out of the U. S. District Court in Illinois, which addressed religious accommodation. And in that religious accommodation case, the plaintiff had to show that he or she holds a sincere religious belief that conflicts with an employment requirement, which would be the attendance at a party, or some sort of Halloween observance. Second, that the individual must have informed the employer, very important, to be put on notice of this conflict. And then finally the employer must have taken adverse employment action, discharging, disciplining, or otherwise in causing some sort of damage to this individual employee.
Mariya Gonor: So just as a strategy for an employer should be to remember that whatever festivities are organized in connection with this holiday should not be presented to employees as a Mandatory to avoid such potential liability.
David Harmon: Okay, so let’s now switch gears and talk about costumes because Halloween is all about costumes.
Mariya Gonor: Yes.
David Harmon: And the key thing is don’t be a headless horseman when it comes to your costume selection.
Mariya Gonor: You could keep your wits about you
David Harmon: Don’t lose your head.
Mariya Gonor: Don’t lose your head. Yes, costumes was a treasure trove of Halloween-related cases and you know I will say that for plaintiffs. This was a Definitely an emotional thing, right? They had to, they were discriminated against. So, when we talk about these cases, while it does demonstrate how unreasonable some people could be, and that could be somewhat entertaining, we’re also mindful about how this was perceived on you know, on the plaintiff’s side.
David Harmon: Yeah, we are really looking at it by taking a deeper dive of analysis into the employer employee relationship and the framework that is set by HR and should be set by HR as this, these are all employment-related issues as opposed to just Halloween fun and games.
Mariya Gonor: Yes. So the first thing to remember is that whatever costume you decide to wear or suggest that your co-worker wear, you are mindful of the discrimination on the basis of a person’s ethnic origin, gender, race, or any other age or any other protected characteristic, for that matter because those protected characteristics do not go away simply because, you know, there is a holiday. Okay, so our first example of national origin discrimination comes to us from the Sixth Circuit, where a Pakistani hotel employee in Michigan claimed that his employer engaged in national origin discrimination when his manager suggested that he dress as Osama Bin Laden for Halloween and then referred to him as also a member of the Taliban.
David Harmon: And he tried to defend it by saying that he was just joking. Right. There’s no, there’s nothing to joke about when it comes to discriminating, based on national origin or otherwise.
Mariya Gonor: Absolutely.
David Harmon: And that’s what we had here.
Mariya Gonor: Right, exactly. And in fact, the court found that it is at least a question of fact to be addressed by the jury whether or not these comments were severe enough to constitute hostile work environment. If you recall, in our very first episode, we addressed the standard for hostile work environment, and it still applies here. But there are circumstances in which one comment is enough to impose liability or one action is enough to impose liability on the employer or cause the employer to terminate employee. In fact, that’s exactly what happened in our very next case.
David Harmon: Well, in this case, it involved a 30-day suspension of a Little Rock, Arkansas police officer. Who claimed that his constitutional rights were violated by that suspension. What he did was he attended a Halloween party at the Fraternal Order of Police Lodge. Dressed in blackface, wearing bib overalls, and a black curly wig, and carrying a watermelon. Ultimately, he was disciplined, and it was found to violate their policies and rightfully so.
Mariya Gonor: 100 percent rightfully so, uh, the employee argued that this was a costume that was supposed to or that was intended to amuse others at the party. And that was part of his artistic expression. The court disagreed naturally. And I would argue that if this case took place nowadays as opposed to in 1995, that this officer probably would have been terminated outright.
David Harmon: It is interesting to note that there was an internal affairs investigation that took place. So, it wasn’t where the police department took it lightly. They followed HR procedures then in effect and ultimately disciplined him. In addition, this was a case that the district court decided against. The officer in costume.
Mariya Gonor: Right.
David Harmon: As opposed to the officer in question.
Mariya Gonor: Right.
David Harmon: And the U. S. Court of Appeals for the 8th Circuit affirmed.
Mariya Gonor: Right. Yes, I think there are two important things about this case that we want to underscore. The first one is that this party was not an employer-sanctioned event, rather. So, this employee showed up for work in this costume, but because his co-workers were present and expressed that they were uncomfortable with this costume, it still brings this into the realm of employment-related actions, even though it’s technically off duty. And the other thing I would highlight is, At that point, this is a case from 1995. So social media was not as widespread as it is now. But David, if this were to happen now, and let’s say co-workers of this employee were not present at the party, but he posted it on pictures of his costume on his social media, and he’s followed or he’s friends with his coworkers on social media. Do you think the employer would have the right to reprimand? Should this information get back to them?
David Harmon: I think it’s the same thing. It’s just a matter that it’s recorded on social media and posted, so it’s publicized that much more. They probably would have gone through the same investigative procedure and ultimately found that discipline was appropriate, if not termination. I think today. really would have, accelerated all the way to termination. Yes. That’s just intolerable.
Mariya Gonor: Absolutely, and the EEOC’s guidance that were released earlier this year, or actually, I’m sorry, last year in 2023, highlight that fact, that actions that employees take on their private social media, if they reach the office, could be actionable by the employer.
David Harmon: Mariya, there’s another case that was in the United States District Court for the Southern District of New York involving costumes. And in that case, it had to do with gender discrimination.
Mariya Gonor: Yes. So, this case involves female coworkers that made comments to plaintiff about her breast size. And they’ve indicated that the fact that she had large breasts somehow was a factor in her success within the company. So, for Halloween, these women decided to stuff their bras and wore a name tag bearing plaintiff’s name. As their Halloween costumes.
David Harmon: A male co-worker also took photos of these women who dressed up in sexual poses. I mean, the more you read the case, the worse it gets.
Mariya Gonor: Oh yeah, it’s, it’s pretty terrifying. The other terrifying fact that this is from 20, what, 2010? Yeah, so this is not even, uh, this is a relatively recent case.
David Harmon: It actually occurred in 2005 and then was ultimately decided in 2010.
Mariya Gonor: Gotcha. So, the reason why we mention this case is not just for the shock value, but also because it is It’s legally interesting and namely this, the people who were engaged in the harassing behavior were women harassing other women. And that’s exactly the type of argument that the defendant made. The defendants argued that because it was the same gender, it was not actionable. The court obviously disagreed and found that this harassment was on the basis of gender because this woman was made fun of as a result of her breast size, which is a gender specific characteristic. According to the court, the jokes that were made at her expense were obviously on the basis of gender and were in violation of New York law and the federal law.
David Harmon: Right. We had both hostile work environment here, and we also had harassment.
Mariya Gonor: Yep. So, to update this just generally for what is happening in 2024. Employers and employees should remember that gender identity is a protected characteristic now under New York law and under federal law. It is an enforcement priority for the EEOC, so costumes that poke fun at gender identity could be considered discriminatory.
David Harmon: It’s not just male or female, it’s nonbinary, any transgender individuals, it covers the entire spectrum.
Mariya Gonor: So, if a male employee decides to dress As a female, wear a dress or what have you as a way to poke fun at gender nonbinary individuals. the courts will likely view that as harassment.
David Harmon: One thing that companies ought to be very much aware of is the type of office decorations that they put up and that are allowed. Those office decorations should definitely be tasteful.
Mariya Gonor: Yes.
David Harmon: Like your candy.
Mariya Gonor: Definitely tasteful, definitely not too gruesome, because you don’t want to upset employees. Definitely not dangerous. You don’t want to be blocking any exits for fire safety concerns. Definitely don’t want to be bringing in actual chainsaws into the office.
David Harmon: Nothing hazardous. You definitely do not want to provoke an investigation under the Occupational Safety and Health Administration and have OSHA come in. And, fine you for, dangerous, hazardous working conditions. So, this is a good spot for us to, uh, discuss strategies as it relates to costumes. That would impact both employers and employees.
Mariya Gonor: So, from the employer perspective, this is a good time to remind your employees about your dress code policy and also if you do not have a dress code policy to create a dress code policy, but it’s appropriate to issue a dress code policy specifically with respect to costumes. If there is a costume event at work, remind employees that costumes should be respectful. Remind your employees about your anti-discrimination policy and also remind employees that. This is still a workplace, so the costumes should be appropriate.
David Harmon: And whether there is or is not a dress policy that is actually issued by your employer as an employee, your costume should be also professional, tasteful, and not be provocative or inappropriate. Wear more rather than less.
Mariya Gonor: Yes, this is not a college party. You know, employees also should remember that the things that they may do outside of work can bleed into work context. So be smart about what you wear or what you post or where you wear what you wear.
David Harmon: That’s a very good rule of thumb.
Mariya Gonor: Just generally in life.
David Harmon: Yes, be careful what you post because it’s forever.
Mariya Gonor: Okay, this would not be a proper celebration of the old Hallow’s Eve if we didn’t touch on werewolves and vampires.
David Harmon: Two very important players in the Halloween scheme.
Mariya Gonor: It is general culture for me as a millennial between what I think early 2010s to probably now because of the twilight, obviously.
David Harmon: Absolutely. Okay, so let’s talk about the, uh, the cases.
Mariya Gonor: Sure. So, this is a Wolverine matter and it comes to us from the EEOC. David, now I have a question for you.
David Harmon: Please.
Mariya Gonor: If you have a coworker who just sort of believes firmly that they’re either a vampire or a werewolf, what do you do? If their cubicle is literally right next door to yours, what do you do?
David Harmon: I think you have to investigate a little bit. I think you have to look inside the cubicle and see what’s going on, okay? I think, I don’t know if it rises to the level of bringing an outside counsel, but I do think that a little investigation is warranted. Are other people complaining? I’d like to know that.
Mariya Gonor: Are you reporting this to HR, I guess, is that the question?
David Harmon: Yeah, that’s the, oh, okay, that’s the question.
Mariya Gonor: So, I guess the, Could be some Americans with Disabilities Act considerations at play, right?
David Harmon: Oh, absolutely. This could call for reasonable accommodation, interactive process, etc. But I think that we would recommend that internally that they conduct an HR investigation. Stick your head inside of the cubicle. See what’s going on. Speak to the person.
Mariya Gonor: Yeah.
David Harmon: Assess this.
Mariya Gonor: If you’re an employer, do you have a duty to lower the lights, make sure that there is no sunlight coming in for a vampire identified?
David Harmon: Well, it’s really a matter of whether that creates an undue hardship on the employer, right?
Mariya Gonor: That’s fair.
David Harmon: How much do they have to do? I mean, are they going to now, if it’s a vampire, someone who says that they’re a vampire, are they now going to have to accommodate with a coffin in the cubicle? I don’t know.
Mariya Gonor: New sleeping quarters for sure, yeah. additional breaks, extra accommodation with leave for blood transfusions.
David Harmon: There could be a whole, uh, wide range of activities that might be requested in this, through the interactive process. You can extrapolate this and see that this could be a possibility. We are in a time period where people are identifying as cats or otherwise.
Mariya Gonor: Yeah. All right. So, this is an interesting case that comes to us straight from the EEOC and this is example 20 of harassment based on, I’m going to keep the actual protected characteristic secret from you and see if you can guess what it is, David.
David Harmon: I feel like I’m on a Halloween game show.
Mariya Gonor: Game show. Exactly. All right. So, Manuela, a web developer. In the university, joined on a lively conversation between coworkers who recently used DNA ancestry testing to learn more about their extended families. Some mentioned findings about, you know, their unknown cousins and what have you. Manuela shared that she might have a gene mutation that would put her at a higher risk of developing, and this is a medical term, Hypertrichosis, a condition also known as werewolf syndrome. Soon after the discussion, co-workers began to refer to her as the wear-woman, make howling noises when they pass her office, and to leave dog treats on her desk. Based on these facts, is this harassment?
David Harmon: Oh, it clearly sounds like harassment. And it sounds like there’s a problem here under the, genetic Information Protection Act. If that’s the, proper name that I recall it to be. But there’s a discrimination based on genetics.
Mariya Gonor: Yes.
David Harmon: So, this is something that calls for an investigation, at the very least, by a company’s HR.
Mariya Gonor: Yes. So, while this is a fun case to discuss at Halloween, there are a number of genetic conditions that could, make one seem like a vampire or like a werewolf and it’s important to remember that Discrimination on the basis of genetics is also not lawful.
David Harmon: You can extrapolate this to genetic mutations or health issues
Mariya Gonor: Yes.
David Harmon: Not having anything to do with Halloween or characters that are recognized or associated with Halloween werewolves’ vampires or whatnot You can really see that this is a possibility for issues in the employment space that need to be looked into You know Mariya, investigations should not turn into witch hunts.
Mariya Gonor: Really? So, are you saying that burning at a stake is not an appropriate reprimand for discrimination?
David Harmon: I think that might be problematic.
Mariya Gonor: All right, before we part for today, we have a prepared poem that provides a HR guide to Halloween delight.
David Harmon: So, bear with us as we share that poem with you. In the office on Halloween night, spooky costumes give quite a fright.
Mariya Gonor: But HR’s here with wisdom clear to keep this festive day sincere.
David Harmon: Do dress up and have some fun, but steer clear of jokes on anyone.
Mariya Gonor: No blood, no gore, no costumes crass. Keep it classy, make it last.
David Harmon: When it comes to treats, do share a ton. But watch the sugar, don’t overrun.
Mariya Gonor: Keep your ghoulish decorations tame. Safety first, and that’s the name of the game.
David Harmon: Don’t forget some won’t partake. For reasons sincere, it’s their own stake.
Mariya Gonor: Respect their choice, don’t make it worse. No need for a teasing curse.
David Harmon: So, as you celebrate this spooky scene, HR is here to keep it clean.
Mariya Gonor: Enjoy the night. Keep it light.
David Harmon: And have a happy Halloween fright.
Mariya Gonor: As always, thank you for joining us. We hope that you found our time together entertaining and informative, but please remember that this is not meant to be or should be taken as legal advice.
David Harmon: If you’d like to continue the conversation, contact us at theemploymentstrategists@norris-law.com.